The most controversial word in the whistleblower hearing: 'Shall'

There was once a swimmer in Northumbria heard shouting: "I will drown and nobody shall save me!" The coroner's jury was divided at the inquest. The English jurors said that the man had plainly committed suicide. The Scots insisted that he had drowned. Only McTavish had the good sense to ask why none of the witnesses had bothered rescuing the poor fellow.

Would you believe me if I told you that the key to understanding Thursday's two-hour long House Intelligence Committee hearing on Donald Trump's phone call with the president of Ukraine can be found in a single monosyllabic verb in this ancient joke about a fictional drowning victim in the Anglo-Scottish borderlands? The impeachment of Bill Clinton was intrinsically bound up in his existential musings about the meaning of "is." Now the success of Democrats' latest salvo against Trump depends upon the precise definition of "shall." (What is it about auxilliary verbs, I wonder?)

It was once a truth universally acknowledged (among grammarians anyway) that in English that the verbs "shall" and "will" expressed different things. In the first person, "shall" meant futurity in the straightforward sense ("I shall arise and go"); "will" implied the future with an additional element of promise or intention ("The castle of McDuff I will surprise"). The distinction carried over into the second and third persons as well, but the two were flipped, with "shall" doing duty for the especially determined ("Tomorrow you shall die") and "will" denoting plain old facts about the future ("This horror will grow milde, this darkness light"). For some bizarre reason, these two were reversed yet again by many Scots in the 18th century, which is why, in James Thomson's original lyrics to "Rule Britannia," we are told that "Britons never will be slaves," later Englished to "shall," lest anyone question John Bull's commitment to his ancient liberties.

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The Scots were not the only dissenters from the Established Church of Shall vs. Will. In the late 19th century, it was still possible for the critic Richard Grant White to observe that "even the boys and girls playing on the commons" in his native New England knew the difference between the two, as did "fairly educated people of English stock" up and down the East Coast and even in the Midwest, with the obvious implication that badly educated people of non-English stock were mucking things up from California to the Caribbean. By 1949, H.L. Mencken (who had only a high-school diploma and was emphatically non-Anglo) would argue that "Today the distinction between will and shall has become so muddled in all save the most painstaking and artificial varieties of American that it may almost be said to have ceased to exist." Douglas McArthur may have been aware of the distinction seven years earlier when he left the Philippines declaring, "I shall return," but only if one can imagine — per impossible — his thinking that he himself would have no say in the matter. In 2019 one of the few reminder that the two verbs ever had any distinct meaning is the familiar refrain in "We Shall Overcome."

Not the only, however. In law, of course, "shall" has set itself up as a kind of linguistic squatter, in defiance of all municipal regulations, and it often looks as if it will never be evicted. If lawyers bent on deliberate obfuscation have their way, it never shall.

In the most recent edition of Black's Law Dictionary, "shall" is defined as follows:

Bryan Garner, the editor of recent editions of Black's has called "shall" "a chameleon-hued word." "Though 'shall' generally means 'must,' legal writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,' or even 'may,'" observed Ruth Bader Ginsburg, writing for the Supreme Court's majority in Gutierrez de Martinez v. Lamagno. (She might have added "most likely will not" and "won't.") In their dissent in Scott v. United States in 1978, William Brennan and Thurgood Marshall scoffed at the majority's reduction of a "shall" that seemingly imposed certain duties and restrictions upon government surveillance to a mere "precatory suggestion." Nor is this confusion directly traceable to the decline of the ordinary shall-will distinction. All the way back in 1877, when Dr. Grant's ordinary schoolkids were still the Eighth Wonder of the Grammatical World, the high court declared that in statutes bearing upon the duties of the government, "'shall' is to be construed as 'may' unless a contrary intention is manifest."

How and why this ambivalence, which has nothing to do with neglected grammatical paradigms or the history of English usage in non-legal contexts, has taken hold is a difficult question to answer. Garner, who would like to see "shall" disappear from American legal usage, has offered the following genealogy:

This seems right, so long as we are talking strictly of wills and lumber rights contracts in Luce County, Michigan, and the articles of incorporation for local soup kitchen nonprofits. In federal statutes, might it not be that the vagueness of "shall" is precisely what recommends it to drafters? Who could possibly foresee all the circumstances under which a given piece statue might be brought to bear upon the conduct of a future administration (or Congress, for that matter)?

It should be clear to everyone who watched the testimony of Joseph Maguire, the acting director of national intelligence, on Thursday that, like all of the Trumpian scandals before it, Ukraine-gate is already undergoing metamorphosis. What was, until about five seconds before Trump released the transcript of his conversation with Volodymyr Zelensky, a heroic story about a disinterested "whistleblower" making a stand on behalf of real American values is fast becoming another extended fit of procedural nagging. Never mind the phone call itself. Why did the third-hand complaint about the alleged contents of the call made by an anonymous source outside the intelligence community not get forwarded to the relevant congressional committees within a week of its transmission? After all, the relevant whistleblower law states that the "the Director [of National Intelligence] shall submit to the congressional intelligence committees an appropriately classified statement of the reasons" for not following up on a given complaint. It was this one little verb — and a few other related chronological hiccups — that seemed to concern most of the Democratic members of the intelligence committee, just as Robert Mueller's testimony seemed largely to hinge on questions about presidential obstruction of justice.

Why does this matter? If Rep. Andre Carson, who readily glossed "shall" on Thursday as "no ifs, ands, or buts," is right, then Maguire clearly broke the law. This would be the closest thing Democrats have ever found to an actual crime committed by a member of the Trump administration in the course of his official duties (though it is unlikely that such an offense would be prosecuted by the Justice Department). This would be the case even if Maguire believes (rightly, I think) that the complaint did not meet the statutory definition of "urgent concern ... relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information." The congressional prerogative of exercising oversight of such determinations is the reason the forwarding clause appears in the statute in the first place.

The Notorious R.B.G. believes otherwise. Is she the justice who would be most likely to support the Trump administration's probable defense of its actions in the unlikely event that it is forced to argue its case? Will conservatives who agreed with the dissent by Rehnquist, Scalia, Souter, and Thomas in Gutierrez ("Notwithstanding the Court's observation that some contexts can leave the word 'shall' a bit slippery, we have repeatedly recognized the normally uncompromising directive that it carries") stick to their guns? Will anyone point out that these two positions are not mutually exclusive and that what generally tips the scales in favor of a "'shall' equals 'may'" reading is the extent to which the "shall" bears upon the Article II authority of the president to direct federal agencies?

I think we need a McTavish.